56 The Law Review, Government Law College [ Vol.

JUDICIAL ACTIVISM Justice Mr. V. G. Palshikar (Retd.)Since the establishment of Courts as means of administering justice, lawis made from two sources. The prime source is from the legislature andthe second is the judge-made law, ie judicial interpretation of alreadyexisting legislation. The Constitution of India also recognized these twomodes of law-making. Article 141 of the Constitution of India lays downthat the law as declared by the Supreme Court of India establishes theLaw of the State. It thus codifies what was hitherto an uncodifiedconvention, namely, recognition of judge-made law.The process of making law by judges is what I would call Judicial Activism.Judicial Activism as distinguished from Judicial Passivism means an activeinterpretation of existing legislation by a judge, made with a view toenhance the utility of that legislation for social betterment. JudicialPassivism, to put it very loosely and liberally is interpretation of existinglegislation without an attempt to enhance its beneficial aspects, by sointerpreting the existing law as to advance and progress the beneficialextent of that legislation.The phenomenon which is now called Judicial Activism is, therefore, notone of recent origin. It originated with the firm establishment of Courtsas means of administration of justice.Several earlier examples of judicial activism can be noted in variousjudgments delivered by the Privy Council, the Federal Court and theSupreme Court of India in its glorious days of infancy. The recentexamples from the time when Judicial Activism was recognized as amode of legislation in modern India also require to be noticed. The firstsuch monumental judgment is one delivered by the Supreme Court ofIndia in the matter of Golak Nath1 wherein the Supreme Court of Indiaenunciated the Judicial Principle of ‘prospective overruling’, giving a widerbeneficial interpretation to the Constitutional mandate contained in Article13 of the Constitution. Article 13 mandates that any legislation whichconflicts with the fundamental rights guaranteed by the Constitution of1 I.C. Golak Nath and Others v. State of Punjab and Another AIR 1967 SC 1643.2007 ] Judicial Activism 57

India would be void to the extent of conflict. The necessary consequence

of this provision was that all legislation existing prior to 1950 and whichconflicted with the provisions of the Constitution, became void from thedate the Constitution was promulgated. Several questions arose regardingthe legality and validity of the actions which were taken and completedprior to the Constitution under such legislation. It was after taking intoconsideration all these aspects that the doctrine of prospective overrulingwas enunciated by the Supreme Court. That is the landmark exercise ofJudicial Activism collectively done by the Supreme Court of India. In anutshell, it was laid down by the Supreme Court of India in Golak Nath’scase that legislation which is void by reason of application of Article 13 ofthe Constitution will stand overruled prospectively. Such interpretationwas necessary to prevent actions taken under such legislation prior to theenforcement of the Constitution of India being declared illegalretrospectively.While dealing with this aspect, the Supreme Court observed thus:‘Between 1950 and 1967 the Legislatures of various States made lawsbringing about an agrarian revolution in our country-zamindaris, inamsand other vested rights were created in tenants... All these were done onthe basis of the correctness of the decisions in Sankari Prasad’s case ([1952]SCR 89), and Sajjan Singh’s case, ([1965] 1 SCR 933) namely, that theParliament had the power to amend the fundamental rights and that Actsin regard to estates were outside judicial scrutiny on the ground that theyinfringed the said rights. The agrarian structure of our country has beenrevolutionized on the basis of the said laws. Should we now giveretrospectivity to our decision, it would introduce chaos and unsettle theconditions in our country. Should we hold that because of the saidconsequences the Parliament had power to take away fundamental rights,a time might come when we would gradually and imperceptibly passunder a totalitarian rule. The learned counsel for the petitioners as wellas those for the respondents placed us on the horns of this dilemma, forthey have taken extreme positions — learned counsel for the petitioners58 The Law Review, Government Law College [ Vol. 7

want us to reach the logical position by holding that all the said laws arevoid and the learned counsel for the respondents persuade us to holdthat the Parliament has unlimited power and, if it chooses, it can do awaywith fundamental rights. We do not think that this Court is so helpless.As the highest Court in the land we must evolve some reasonable principleto meet this extraordinary situation. There is an essential distinctionbetween the Constitution and statutes. Comparatively speaking,Constitution is permanent, it is an organic statute; it grows by its owninherent force. The constitutional concepts are couched in elastic terms.Courts are expected to and indeed should interpret, its terms withoutdoing violence to the language to suit the expanding needs of the society.In this process and in a real sense they make laws. Though it is notadmitted, the said role of this court is effective and cannot be ignored.Even in the realm of ordinary statutes, the subtle working of the processis apparent though the approach is more conservative and inhibitive. Inthe constitutional field, therefore, to meet the present extraordinarysituation that may be caused by our decision, we must evolve somedoctrine which has roots in reason and precedents so that the past maybe preserved and the future protected.’Then the Supreme Court went on to observe the necessity of the doctrineof prospective over-ruling. It observed thus:‘It is a modern doctrine suitable for a fast moving society. It does not doaway with the doctrine of stare decisis, but it confines it to past transactions.It is true that in one sense the court only declares the law, either customaryor statutory or personal law. While in strict theory it may be said that thedoctrine involves making of law, what the court really does is to declarethe law but refuses to give retroactivity to it. It is really a pragmatic solutionreconciling the two conflicting doctrines, namely, that a court finds lawand that it does make law. It finds law but restricts its operation to thefuture. It enables the court to bring about a smooth transition by correctingits errors without disturbing the impact of those errors on the pasttransactions. It is left to the discretion of the court to prescribe the limitsof the retroactivity and thereby it enables it to mould the relief to meetthe ends of justice.’2007 ] Judicial Activism 59

The Supreme Court was definitely alive to its own limitations. It therefore,observed as under:‘As this court for the first time has been called upon to apply the doctrineevolved in a different country under different circumstances, we wouldlike to move warily in the beginning. We would lay down the followingpropositions:(1) The doctrine of prospective overruling can be invoked only in matters arising under our Constitution; (2) it can be applied only by the highest court of the country ie the Supreme Court as it has the constitutional jurisdiction to declare law binding on all the courts in India; (3) the scope of the retroactive operation of the law declared by the Supreme Court superseding its earlier decisions is left to its discretion to be moulded in accordance with the justice of the cause or matter before it.’In 1973, the entire Supreme Court again reassembled. This time 13 Judges,to consider the correctness of the judgment in Golak Nath’s case whiledeciding the writ petition in His Holiness Kesavananda BharatiSripadagalvaru and Ors. v. State of Kerala and another.2 By majority view,the Supreme Court overruled the decision in Golak Nath’s case in so faras it held that Article 368 does not entitle the Parliament to amend theConstitution. However, the application of the doctrine of prospectiveoverruling was not touched. The Supreme Court went on to hold by amajority that the basic structure of the Constitution or the frame-work ofthe Constitution cannot be amended by recourse to Article 368 by theParliament. Reading of limitations on the power of the Parliament toamend the Constitution is undoubtedly an exercise in Judicial Activism.In fact a minority view expressed in Kesavananda Bharati’s case opinedthat there are no limits on the power of amendment under Article 368. Itwill, thus be seen that the Supreme Court has very consciously dealt inJudicial Activism. A perusal of the judgment in Golak Nath’s case as alsoin Kesavananda Bharati’s case will thus demonstrate that Judicial Activismhas its own limits and is to be exercised in the matter of interpretation of

2 AIR 1973 SC 1461.

60 The Law Review, Government Law College [ Vol. 7

the Constitutional law and to an extent over statutory law, strictly for thepurpose of expanding the beneficial application of that law in a fast movingand changing society like ours. In Kesavananda Bharati’s case the SupremeCourt has enunciated in most clear terms as under:‘The true position is that every provision of the Constitution can beamended provided in the result the basic foundation and structure of theConstitution remains the same.’The basic structure may be considered to consist of the following features:(1) Supremacy of the Constitution;(2) Republic and democratic form of the Government;(3) Secular character of the Constitution;(4) Separation of powers between the Legislature, Executive and the Judiciary; and(5) Federal character of the Constitution.Dissenting from the majority, Justice H R Khanna, has very wisely observedthat unanimity obtained without sacrifice of conviction commends thedecision to public confidence. Unanimity which is merely formal and isobtained at the expense of strong personal convictions is not desirable ina court of last resort. Way back in 1976, Justice Khanna spoke of anappeal to the brooding spirit of law to maintain the independence of thefuture day in relation to the laying down of Judge-made law. In my opinion,it is a word of caution sagely given by a great Judge. The principle ofJudicial Activism is not to be used for seeking popularity at the cost ofbartering necessary protection of law. No court can, by taking resort toJudicial Activism, take upon itself, functions squarely enjoined upon someother Institution by the Constitution. Investigative power cannot beassumed by any Court and it is in this regard that the question regardinglimitations on the powers of Judicial Activism require close scrutiny.2007 ] Judicial Activism 61

Yet another example of Judicial Activism is the judgment of the Supreme

Court in the case of Minerva Mills Ltd. v. Union of India.3 It was held bythe Supreme Court of India in this Minerva Mills case that in cases ofextreme urgency and public importance it may be necessary for anauthority, judicial or quasi-judicial or executive, to act quasi judicially tomake immediate orders in which circumstances it may not be possible toimplement the maxim audi alteram partem in its true spirit. It was heldthat such order would be valid if followed by a post order hearing or postdecision hearing. By this judgment the Supreme Court envisaged thequasi-judicial or judicial authorities to be so fair, fearless and confident asto change their earlier decision on patient and impartial hearing after thedecision is rendered. It has given yet another dimension to the age oldlegal requirement of audi alteram partem.The most controversial judgment of the Supreme Court involving JudicialActivism is one delivered in the case of ADM Jabalpur v. Shivkant Shukla4wherein Article 21 which provides that no person shall be deprived ofhis life or personal liberty except according to procedure established bylaw was discussed. The majority of the Bench deciding ADM Jabalpur’scase held that in cases of dire emergency as were existing between 1975and 1977, a procedure can be established by law, following which evenhuman life can be taken away. Justice Chandrachud who wrote thejudgment came under heavy fire for writing a pro-Government judgmentbut the proposition of law as propounded by him was an excellent exampleof Judicial Activism. Justice Chandrachud has so interpreted Article 21and upheld the validity of legislation which require acceptance to maintainthe sovereignty of the Country in case it is threatened either by internalaggression or external invasion.Yet another example of amplifying the law to enhance personal rightsand fundamental rights is the judgment of the Supreme Court in Mrs.Maneka Gandhi’s Passport case5. There, the legislation governing grant of

3 AIR 1986 SC 2030.

4 AIR 1976 SC 1207.5 Mrs. Maneka Gandhi v. Union of India and Another AIR 1978 SC 597.62 The Law Review, Government Law College [ Vol. 7

passport was interpreted in a manner so as to enhance the rights of personal

freedom and personal liberty.The judgment in the Hawala Scam case6 or the directions issued therein,is nothing but a roving probe or a fishing expedition undertaken by theSupreme Court of India. None of the Articles mentioned in Part IV ofChapter IV of the Constitution of India empower the Supreme Court ofIndia or any of its Judges to issue such directions as have been issued inthe Hawala Scam case. A Bench of the Supreme Court has virtually takenover the function of Investigating Agency in this case. Orders were issuedto the extent of naming the Director of the Central Bureau of Investigation,naming the Officers who should be brought back after retirement, layingdown the manner in which investigation shall be undertaken. I for one,could not see any provision of law which empowers the court to issuesuch directions in the matter of investigation, prior to filling of a challanand beyond the powers given by the Criminal Procedure Code. TheSupreme Court is, no doubt, supreme but the supremacy is within thelimits spelt out by Chapter IV of Part IV of the Constitution. The directionsof the kind given in this case cannot be said to be directions under Article142 of the Constitution, as such directions, of necessity, require existenceof a valid lis before the Supreme Court, which has been decided by theSupreme Court and for execution of which order, further orders can bemade under Article 142 of the Constitution.Similar are the directions issued by the Supreme Court of India in thematter of Smt. Sheela Kaul and Capt. Satish Sharma.7 The SupremeCourt has without trial and without giving them any adequate opportunityto defend themselves or prove their innocence held them guilty of certainmisconduct and penalised them with a fine of Rs. 50 lakh. I for one, donot see any provision in the Constitution of India empowering the SupremeCourt to impose a fine in such a manner. I see no machinery to recoverthis penalty if factually not paid by these persons. These persons havebeen deprived of their regular trial by a Sessions Court and a furtherappeal from order of conviction if any to the High Court and ultimateright to approach the Supreme Court. Judicial Activism cannot be used6 Central Bureau of Investigation v. V. C. Shukla and Others [1998] 1 SCR 1153.7 Common Cause, A Regd. Society v. Union of India and Others (1996) 6 SCC 593.2007 ] Judicial Activism 63

to destroy the statutory rights existing in individuals and distort of the

Constitution of India. That, with deepest respect, may amount to misuseof judicial activism.In recent days, reference is made to Article 142 of the Constitution ofIndia as the source of power for giving of such directions. A scrutiny ofArticle 142, as it stands in the Constitution today, will demonstrate thatno such power can be attributed to Article 142. It has been enacted togive enough power to the Supreme Court of India to see that its orders inlitigation which come up before it in its jurisdiction laid down by theConstitution, are properly executed, because no statutory machinery orexecution of the orders of the Supreme Court not made in its civil orcriminal jurisdiction, is created. The Supreme Court has originaljurisdiction under Article 32. Directions for protection of fundamentalrights can be issued in such cases under Article 32 and in implementationof such directions, perhaps certain further directions can be issued underArticle 142. Article 142 cannot be read to empower any judicial authorityhowsoever high it may be to do something which cannot be done underthe Constitution of India. The Supreme Court cannot under theConstitution, in my humble opinion, legislate or investigate into possiblecrime and issue day to day directions for such offences as are being donein the Hawala Scam or Fodder Scam. In fact Article 142 is enacted forenforcement of the decrees and orders of the Supreme Court and ordersas to discovery etc. It is clearly stated in Article 142 that the SupremeCourt in exercise of its jurisdiction may pass such decree or make suchorders as are necessary for doing complete justice in any cause or matterpending before it. In effect, it will be seen that Judicial Activism is to bebrought into operation for the limited purposes of giving enhancedbeneficial meaning to existing legislation to bring about harmoniousinterpretation of various provisions of the legislation and to propagatecohesive interpretation of the legislation in light of Constitutional monarchygiven by the Constitution. It also can be brought into play for givingbeneficial interpretation to the Constitutional provisions also.In my opinion, Judicial Activism cannot be used for usurping the powersof the Executive or the Legislature. It has been consistently laid down by64 The Law Review, Government Law College [ Vol. 7

the Supreme Court of India that there cannot be a writ of mandamus

from any court directing the Legislature to legislate on a given subject.The power to legislate is squarely conferred on the Legislature by theConstitution. No such legislative power is given to the Courts by theConstitution. The legislative action done by the Courts is to be derivedfrom its Judicial Activism done in permissible limits for proper andcomplete interpretation of the provisions of law. Judicial Activism cannotbe used for filling up the lacunae in Legislation or for providing rights orcreating liabilities not provided by the Legislation. In this regard, thejudgments of the Supreme Court in relation to admission to the PostGraduate education in Medicinal Science need consideration. Thesejudgments, starting with the judgment in Pradeep Kumar Jain’s case,8 andthen three or four directions issued in Dr. Dinesh Kumar’s case9 appear tobe yet another avoidable exercise in Judicial Activism. In that period, theSupreme Court of India, under the stewardship of Justice P N Bhagwatias the Chief Justice, had practically undertaken Judicial administration ofmedical education in India. The Supreme Court went on to lay down themanner in which Post Graduate seats in different Post Graduate MedicalInstitutions in India would be filled, the manner in which the examinationfor filling those posts is to be conducted, the manner in which the seatsare to be distributed in every discipline, and the manner in which thequestion of the reservation for backward classes candidates would bedealt with. All this, in my humble opinion, was clearly in the domain ofthe Executive administering the Department of Education. It was certainlya specialized field which ought to have been left for governing to theSpecialized Bodies like the Indian Medical Council. To the same effectare cases in the matter of capitation fees dealing with education inEngineering Branches in particular. In deciding all these cases, and givingnumerous directions in those cases, I in all humility, submit that theSupreme Court has transgressed the limits under the specious cover ofJudicial Activism.

Similarly, the recent judgment in the matter of animal protection also

needs consideration. The need for animal protection cannot beexaggerated, yet, no court, can by its judgment, legislate the requirementsof environmental protection. To do so is, in my humble opinion, excessiveexercise of Judicial Activism. In this light, the judgment of the SupremeCourt in the matter of coastal constructions deserves to be considered.The consideration of Judicial Activism will be incomplete if the judgmentof the Supreme Court of India delivered by a Bench headed by Hon’beDr. Justice A S Anand10 is not noticed. This judgment was delivered by aBench of the Supreme Court on the application of the Supreme CourtBar Association seeking review of the order pronounced by the SupremeCourt of India in the matter of V C Mishra11, former chairman of the BarCouncil of India punishing him for contempt of Court. The SupremeCourt Bar Association claimed that Article 142 envisages that the SupremeCourt in order to do complete justice can pass any order laying stress onthe aspect of doing complete justice in any matter. I have already dealtwith this aspect earlier. It is reported in the press that the Solicitor-Generalargued that the Court cannot create jurisdiction nor create punishmentwhich is not permitted by law. The Supreme Court of India, has acceptingthese contentions, issued a notice of caution saying that the courts shouldbe skeptical about taking over power of other statutory organs. ‘TheTimes of India’ has commented that Justice Anand’s pronouncementhas rightly cautioned the highest judiciary against taking over the powersof other statutory organs like the Bar Council of India. According to ‘TheTimes of India’, Justice Anand said such a course is not permissible. Itwill be seen from this judgment that the Supreme Court has come aliveto its limitations in this regard. This was ignored by Justice J S Vermaand Justice Kuldeep Singh when they were presiding officers of the seniormost Benches in the Supreme Court of India.The consideration of the process of Judicial Activism will be incompleteif we do not take into consideration the reasons for which Judicial Activismhas been undertaken in the recent past. One of the prime reasons givenis inaction on the part of the Executive in performing its statutory orconstitutional functions requiring interference by courts to seekperformance of those duties and functions by issuing appropriate directionsin the nature of mandamus. It may be true that there is inaction on thepart of the Executive and getting work done by the person required or10 Supreme Court Bar Association v. Union of India and Another AIR 1998 SC 1845.11 In re : Vinay Chandra Mishra (the alleged contemnor) AIR 1995 SC 2348.66 The Law Review, Government Law College [ Vol. 7

enjoined with the duty to do it may be a part of the duty of the court.However, this can be taken up only in valid litigation brought before thecourt by concerned persons. Even then, the courts should have necessarylimitations. The manner in which orders were issued in the matters ofHawala Scam or Fodder Scam or Environmental Protection, it cannot besaid that there was a valid exercise of judicial powers. Judicial Activismmust exist within the permissible limits which have been explained byme above. Correction of an erring executive is not the function of thejudiciary. Judicial Activism cannot therefore, be undertaken for suchpurposes.Unfortunately, in spite of so many judgments cautioning the judiciaryagainst excessive exercise of Judicial Activism, in the recent past theActivism has crossed all its permissible limits and restraints. In fact, theinterference is so often, that the Activism has ceased to be Judicial. It hasbecome a tool to interfere in the fields of the Executive and Legislatureunder the omnibus cover of public interest.A direction issued recently by the Chief Justice of the Bombay HighCourt, would prove the point I wish to make. In a PIL regarding preventionof recurring injuries of substantial nature due to water logging in thestreets of Bombay, the PIL Court directed the Municipal authorities totake all necessary measures to prevent recurrence of 26.7.2005 and thenobserved that if despite directions, water logging (exceeding six inches)occurred next year, the municipal authorities would be personallypenalized. The Court probably forgot to injunct the Rain God fromordering a cloud burst over Bombay City.It is necessary that the image of the Indian Judiciary is not allowed to betarnished any further. The responsibility to do so lies squarely on theshoulders of both the Judiciary and the legal profession. The decline inthe standards of the judiciary has direct nexus with the standard of thelegal profession. The profession must stop this decline and rise back to itsglorious heights. It must stop this regular erosion of justice administrationand decorum, by firmly and politely pointing out to the Courts itslimitations in the matters of jurisdiction whether in PIL or other litigationas was done by the Additional Solicitor General of India, Shri VikasSingh, before the Supreme Court of India. May the breed of such lawyersincrease by leaps and bounds to bring back to the Indian Judiciary itspristine glory.